Facts
On June 12, 1999, the cantonal police of Nidwalden conducted two breath tests (Dräger Alcotest) on a motorcycle driver, X, which revealed a blood alcohol level of 1.36 and 1.54 grams per thousand. No blood sample was taken. The investigating judge of the canton of Nidwalden convicted X to a fine of 300 francs for drunk driving on August 25, 1999. The cantonal court of Nidwalden acquitted X on September 6, 2000. The public prosecutor of the canton of Nidwalden appealed this judgment, which was rejected by the higher court of the canton of Nidwalden on January 18, 2001.
The public prosecutor of the canton of Nidwalden filed a nullity appeal with the Federal Court on May 1/2, 2001, requesting the annulment of the judgment of the higher court of the canton of Nidwalden and the referral of the case to the lower jurisdiction for a new decision.
Considerations
The Federal Court admitted the appeal. The Court considered that the blood test is the appropriate examination to establish the state of intoxication, but that the absence of a blood test does not mean that evidence of inability to drive cannot be provided by other means. The Court estimated that the results of the breath tests and the testimonies of the police officers could be used as evidence of the state of intoxication.
The Court also considered that Article 138 of the Road Traffic Ordinance (TRegO) does not prescribe the blood test as the only means of evidence of the state of intoxication. Article 249 of the CrimPC provides that the cantonal authorities must freely assess the evidence, and that the blood test is not the only possible evidence.
The Court concluded that the cantonal courts had violated federal law by excluding the results of…